Can abusers be charged 2nd time?

August 12, 2012|By VIRGINIA BLACK

Barbara Schrock hadn't bonded with her second daughter, she admitted to investigators after the baby landed in the hospital.

But the state of their young mother-daughter relationship would turn out to be much more dire than that.When 3-month-old Natalia Fay Benson was rushed to Memorial Hospital on July 27, 2005, doctors discovered life-threatening brain injuries consistent with shaken baby syndrome, but also older injuries that included broken legs, a detached retina, a skull fracture and cracked ribs.

Schrock, who had nearly sole care of Natalia and a toddler daughter while the children's father worked long hours, showed little emotion when doctors told her of the grim prognosis. The South Bend woman was ultimately convicted of battery, sentenced to 13 years and is slated to be released from Indiana's Women's Prison in 2014.

The little girl who would never see, talk or walk -- whose brain one doctor would describe in documents as "liquefying" -- lived more than five years longer. Natalia ultimately died March 25, 2011, as a ward of the state who endured so many dire medical emergencies over her short life that a "do not resuscitate" order was in effect.

In Elkhart County next door, meanwhile, 7-year-old Joseph Krauss also struggled in his foster family's Nappanee home to move, talk or even breathe after his own father had apparently shaken him severely while alone with the boy as a 4-month-old infant. Joey died April 16, 2011, several years after the 2004 incident that doctors predicted would end his life.

Joey's father, Bryan Minier, pleaded guilty to neglect of a dependent causing serious bodily injury and was sentenced in 2007 to 15 years in prison.

A South Bend parole district spokeswoman confirmed last week that Minier was released on parole this past June.

The two cases now raise a question: Can the adults who have served prison time for irrevocably damaging their children now be punished for killing them?

Elkhart County's prosecutor said recently through a spokesman that because of constitutional "double jeopardy" guarantees, his office is not examining new charges against Minier. The county coroner, after an autopsy, ruled the boy's death a homicide.

But St. Joseph County prosecutors say case law suggests that double jeopardy would not apply in such circumstances, and they're actively weighing whether to assess new charges against Schrock - if they can prove that Natalia died because of complications from the original injuries.

Indeed, in Illinois and Florida, juries have recently convicted two men in similar cases, after they spent time in prison for abusing children who lived years after their initial injuries.

No autopsy as evidence

Natalia Fay Benson's last few days were spent in an Indianapolis-area hospital as doctors tried to restore her breathing and help her body combat an infection she'd developed. But the little girl - who had often knocked at death's door in her short life - died this time, and the Hamilton County coroner was called.

Coroner Thurl Cecil Jr. contacted a Department of Child Services official in St. Joseph County, he said recently, and he asked whether he should conduct an autopsy.

The answer, he said, was no.

"I didn't want to put the little girl through more than what she'd already been through if it was not going to be needed," Cecil said of the lack of autopsy. "I assumed - and remember that word 'assumed' - that they (DCS) had spoken with law enforcement workers in a reasonable time frame about whether an autopsy would be needed."

DCS fatality records confirm that no autopsy was performed. The documents released to The Tribune under Indiana law do not refer to any contact or consultation with law enforcement officials after Natalia died.

But DCS spokeswoman Stephanie McFarland said DCS employees do not make decisions on whether an autopsy should be conducted and would not have told a coroner how to proceed.

St. Joseph County Prosecutor Michael Dvorak said his office was not notified of Natalia's death until five days after she died, when the Special Victims Unit received an e-mail from a local DCS employee.

McFarland said the two caseworkers on Natalia's case then have since left the agency, but officials believe notification took only a couple of days. Even that delay, she said, was caused by the unusual circumstances and an extra level of decision-making.

Dvorak declined to discuss the lack of an autopsy except to say that his staff will review what doctors will be able to testify about Natalia's injuries and how they affected the girl's death.

He and Chief Deputy Prosecutor Ken Cotter are unaware of similar cases in Indiana. That's possibly because prosecutors who have previously charged those involved in abuse mistakenly believe they cannot pursue higher charges later if a victim dies.

"This happens to be an exception to double jeopardy," Dvorak said of such shaken baby cases. "But not being precluded from charging ... does not mean we have the proof that she died from her mother's actions and not something else."

To prove murder, Dvorak and Cotter say, prosecutors also must show that the adult whose actions resulted in death actually intended to kill the child. Juries often have been reluctant to declare that a distraught, frustrated parent set out to murder.

An enhanced battery charge where children 14 and younger die - not murder, but a felony with more serious consequences than felony battery - was added to state law more than a decade ago.

"The reason the legislature passed that bill," said Dvorak, who was a member of the General Assembly then, "was because prosecutors had been continuously coming to legislators saying, 'We can't prove murder in shaken baby cases.' "

Dr. Michael Turner, a pediatric neurosurgeon who has specialized in treating shaken baby cases from around the state for 30 years, agrees they are difficult to prove.

Doctors can't track reliable statistics for the same reason: There's rarely a witness to what happened other than the adult involved.

"The perpetrator often fights it and doesn't admit it," Turner said. "The classic perpetrator of this is the boyfriend of the mom. ... They don't want to hit the baby, they know that's bad, so they shake it.

"They lose it, and they shake the kid, and they've done it," he said of the resulting damage.

In both Natalia's and Joey's cases, doctors referred to the damage as being as extensive as if the infants had been dropped from the top of multistory buildings.

"Many of these kids are just devastated from the get-go," Turner said. Doctors often can only manage the symptoms, relieving swelling or removing blood clots, but that brain and spinal cord damage is irrevocable.

Babies' brains are very different than adult brains. Myelin that cushions and protects nerve cells and gray matter does not begin to form until a baby is about 40 weeks old, not fully developed until about the age of 18.

Turner sees a need to better teach new parents how to react to stress - especially males.

At Methodist Hospital in Indianapolis, where he practices, Turner said parents are asked to watch a video and discuss shaken baby and other possible outcomes of reacting badly to a crying baby.

'Think again'

Doctors can identify an injury and determine about when the damage occurred, Turner said. Law enforcement then has to compare a baby's development until then to pinpoint when a caregiver might have inflicted the damage.

In fact, Schrock's first trial on charges of abusing Natalia ended in a hung jury; a second jury convicted her in 2009. Schrock has consistently denied abusing Natalia.

Schrock and Minier declined, through Department of Correction authorities, to comment for this article. Both have unsuccessfully appealed their cases to the Indiana Court of Appeals.

Judy Spicher, who with her husband, Brian, cared for Joey Krauss in their foster home until he died last year, remembers when Bryan Minier was being sentenced for hurting his son.

"He told the judge he didn't think 15 years was fair, because he was taking away his life," Spicher said. "But Joey got the death sentence."

"I just know that she took a life from a child that depended on her and trusted her, and she betrayed her," the Buchanan man said. "I would just like to see St. Joseph County charge her with murder and set an example, and maybe some other people who are hitting these children will think again."